Holt v. Zupan

Filing 4

ORDER Directing Petitioner To Cure Deficiencies, by Magistrate Judge Gordon P. Gallagher on 12/22/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03428-GPG
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
JOSEPH ORIN HOLT,
Petitioner,
v.
ZUPAN, Warden,
Respondent.

ORDER DIRECTING PETITIONER TO CURE DEFICIENCIES

Petitioner, Joseph Orin Holt, is a prisoner in the custody of the Colorado
Department of Corrections (“CDOC”) and is currently incarcerated at the Colorado
Territorial Correctional Facility in Canón City, Colorado. Mr. Holt initiated this action by
filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a
Habeas Corpus Action. In the Application, Mr. Holt complains that he is being forced to
complete sex offender treatment for offenses that occurred 30-40 years ago, long
before the Sex Offender Treatment Program was instituted in 1998 in conjunction with
the Sex Offender Lifetime Supervision Act, COLO. REV. STAT. § 18-1.3-1001, et seq.
He asserts that he is being denied earned time credits and prison jobs because he
refuses to participate in the program. Mr. Holt seeks declaratory and injunctive relief.
“The essence of habeas corpus is an attack by a person in custody upon the

legality of that custody, and . . . the traditional function of the writ is to secure release
from illegal custody.” See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Petitions
under § 2241 are used to attack the execution of a sentence, see Bradshaw v. Story, 86
F.3d 164, 166 (10th Cir.1996).
It is well established in the Tenth Circuit that a habeas corpus application is an
improper vehicle for a prisoner to challenge the conditions of his confinement. See
McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997).
Generally, a state prisoner’s challenge to his conditions of confinement is cognizable
under 42 U.S.C. § 1983. Id. Mr. Holt’s allegations implicate the conditions of his
confinement, not the execution of his sentence.
As part of the Court’s review pursuant to D.C.COLO.LCivR 8.1(b), the Court has
determined that the submitted documents are deficient as described in this Order. Mr.
Holt will be directed to cure the following if he wishes to pursue his claims. Any papers
that Mr. Holt files in response to this Order must include the civil action number noted
above in the caption of this Order.
28 U.S.C. § 1915 Motion and Affidavit:
is not submitted
(1)
(2)
is missing affidavit
(3)
xx
is missing certified copy of prisoner's trust fund statement for the 6-month
period immediately preceding this filing
is missing certificate showing current balance in prison account
(4)
(5)
is missing required financial information
is missing authorization to calculate and disburse filing fee payments
(6)
xx
(7)
is missing an original signature by the prisoner
(8)
xx
is not on proper form (must use form applicable to a Prisoner Complaint)
(9)
names in caption do not match names in caption of complaint, petition or
habeas application
(10) xx
other: motion and supporting documents are necessary only if filing and
administrative fees totaling $400.00 filing fee are not paid.
Complaint, Petition or Application:
2

(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)

xx

is not submitted
is not on proper form (must use the court’s current form for filing a
Prisoner Complaint)
is missing an original signature by the prisoner
is missing page nos.
uses et al. instead of listing all parties in caption
An original and a copy have not been received by the court. Only an
original has been received.
Sufficient copies to serve each defendant/respondent have not been
received by the court.
names in caption do not match names in text
other:

Accordingly, it is
ORDERED that Petitioner cure the deficiencies designated above within thirty
days from the date of this Order. Any papers that Petitioner files in response to this
Order must include the civil action number on this Order. It is
FURTHER ORDERED that Petitioner shall obtain the Court-approved forms for
filing a Prisoner Complaint and a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915(with the assistance of his case manager or the facility’s
legal assistant), along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Petitioner fails to cure the designated deficiencies
within thirty days from the date of this Order, the action will be dismissed without
further notice.
DATED: December 22, 2014, at Denver, Colorado.
BY THE COURT:

s/ Gordon P. Gallagher
United States Magistrate Judge

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